Citation Nr: 22033763 Decision Date: 06/09/22 Archive Date: 06/09/22 DOCKET NO. 16-04 360 DATE: June 9, 2022 ORDER Service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran died in June 2012. 2. The Veteran's death certificate lists the immediate cause of death as sepsis; due to, or as a consequence of, venous thromboembolism; due to, or as a consequence of non-small cell lung cancer adenocarcinoma type stage IV metastatic. 3. An autopsy was performed, which found widely metastatic lung adenocarcinoma with poorly differentiated adenocarcinoma of the right lung hilum and widely scattered metastases involving the right lung apex, liver, bilateral kidneys, thyroid, pituitary gland and vertebral column. 4. Additional autopsy findings included pulmonary embolus of the left proximal pulmonary artery; heavy lungs demonstrating diffuse alveolar damage consistent with acute respiratory distress syndrome (ARDS), bilateral adhesions, and pleural effusion; mild cardiomegaly with concentric left ventricular hypertrophy and minimal to mild coronary artery atherosclerosis; generalized edema; mild nephrosclerosis; status post hysterectomy, with dense abdominal adhesions; and stage II sacral decubitus ulcer. The cause of death was listed as acute respiratory distress syndrome and multiorgan failure with the underlying cause of death to be metastatic adenocarcinoma. 5. At the time of the Veteran's death, service connection was not in effect for any disability. 6. VA concedes the Veteran most likely underwent a hysterectomy while in service. 7. Metastatic lung cancer did not have its onset during active service or within one year of service separation and is not otherwise due to active service. 8. An injury or disease in service did not cause or contribute substantially or materially to the Veteran's death. CONCLUSION OF LAW 1. The criteria for service connection for metastatic lung cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to May 1994, and had additional active duty from training (ACDUTRA) service in the Army Reserves. The Veteran passed away in June 2012, and the appellant is the Veteran's surviving spouse. The appellant testified at a hearing before the undersigned in January 2019. A transcript of the hearing is of record. The case was previously before the Board in December 2019. At that time, it was determined new and material evidence had been received to reopen the claim for service connection for the cause of the Veteran's death, and the underlying service connection claim was remanded for further development. In an August 2020 decision, the Board denied service connection for the cause of the Veteran's death. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to a May 2021 Order, following an April 2021 Joint Motion for Remand (JMR). The parties agreed that the August 2020 Board decision did not properly apply the heightened "benefit-of-the-doubt rule" that should be applied when, as here, the Veteran's service-treatment records (STRs) are unavailable for review. The Court granted the JMR and the case was returned to the Board. The Board remanded the issue in September 2021 for further development of the evidence. This has been accomplished and the issue has been returned for further appellate consideration. Entitlement to service connection for the cause of the Veteran's death A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC). 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In determining whether VA compensation is warranted for a DIC claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as cancer (as a malignant tumor), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The appellant contends that the cause of the Veteran's death is related to service. During the hearing before the undersigned, the appellant testified that the Veteran underwent a hysterectomy while on active duty that caused significant complications that included abdominal adhesions and infections that, it was asserted, contributed to the Veteran's death. The certificate of death shows the Veteran died in June 2012, at age 59. The immediate cause of death was listed as sepsis; due to, or as a consequence of, venous thromboembolism; due to, or as a consequence of non-small cell lung cancer adenocarcinoma type state IV metastasis. An autopsy was performed. This found widely metastatic lung adenocarcinoma with poorly differentiated adenocarcinoma of the right lung hilum and widely scattered metastases involving the right lung apex, liver, bilateral kidneys, thyroid, pituitary gland and vertebral column. The autopsy findings also included pulmonary embolus of the left proximal pulmonary artery; heavy lungs demonstrating diffuse alveolar damage consistent with acute respiratory distress syndrome (ARDS), bilateral adhesions, and pleural effusion; mild cardiomegaly with concentric left ventricular hypertrophy and minimal to mild coronary artery atherosclerosis; generalized edema; mild nephrosclerosis; status post hysterectomy, with dense abdominal adhesions; and stage II sacral decubitus ulcer. The cause of death was listed as acute respiratory distress syndrome and multiorgan failure with the underlying cause of death to be metastatic adenocarcinoma. It is noted that the Veteran's service treatment records (STRs) are not available and have been certified as unavailable after extensive attempts to locate them. VA has heightened duties when the STRs are unavailable. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, establish a heightened benefit-of-the-doubt standard, only a heightened duty of the Board to consider applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). Private treatment records include a mammogram performed in April 2009. At that time, it was reported that the Veteran had underwent a hysterectomy at age 41, which places the surgery in approximately 1994. The Board has resolved reasonable doubt to find that this took place while the Veteran was on active duty. Additional private treatment records, dated in November 2009, show that the Veteran reported having had multiple abdominal surgeries including a hysterectomy when she was in her 40s and surgery for a bowel obstruction in 2001. In a March 2012 private hospital report, the Veteran reported having had pain since December 2011 that had progressed in her bilateral lower flank and hip region. She underwent operative procedures and evaluations that found multiple abnormalities in her lung and pelvis as well as bony metastasis with epidural extension. An MRI study showed multiple bony metastasis in her thoracic and lumbar spine, most likely from a lung primary. In April 2012 she was discharged with a final diagnosis of stage IV non-small cell lung cancer with a primary in the right hilar mass, mediastinal lymph nodes, liver, left kidney, bones, and brain. Involvement of the thoracic and lumbar spine was found. VA attempted to obtain a medical opinion in June 2020 regarding whether the Veteran had undergone a hysterectomy during service and, if so, whether it was at least as likely as not that any hysterectomy residuals, including abdominal adhesions, caused or materially contributed to the causes of the Veteran's death, including sepsis. After stating that the Veteran had a history of hysterectomy in 2001, the examiner was unable to render an opinion as there was conflicting information regarding the dates of this surgery. A second opinion was requested pursuant to the most recent Board remand following the JMR. The examiner was to consider the Board's favorable finding that the Veteran's hysterectomy was performed while she was on active duty. This was accomplished in April 2022. After reviewing the record, the examiner opined that it was less likely than not that the cause of the Veteran's death was caused by a claimed in-service injury, event or illness. For rationale, the examiner stated the Veteran's medical records showed that she underwent a hysterectomy and had resultant abdominal adhesions. However, the Veteran was also diagnosed with state IV lung cancer that was metastatic and she had undergone radiation treatment and chemotherapy. The examiner stated there was no evidence that adhesions caused infection or sepsis. Rather, the Veteran was immunocompromised from lung cancer which ultimately led to death. The examiner also stated it was less likely as not that the Veteran's post hysterectomy with dense abdominal adhesions substantially or materially contributed to death or that it combined to cause death, or that it aided or lent assistance to the production of death, or caused debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. The examiner went on to state that it is less likely than not that death was proximately due to or the result of a service-connected condition, with the same rationale given. The Veteran's death was ultimately the result of metastatic lung cancer, with metastasis to multiple areas of her body. While the appellant asserts that complications from an in-service hysterectomy was a causative factor leading to her death, the Board can find no basis to support a conclusion that such complications contributed to death. The Board has found that, with the resolution of reasonable doubt, the Veteran did undergo her hysterectomy in service. Nevertheless, the only nexus opinion in the record is that complications from that surgery did not cause or contribute to death. This is the only medical opinion in the record. While the Veteran appellant believes the Veteran's hysterectomy residuals accelerated her death, he is not competent to provide a diagnosis in this case or provide an opinion as to the etiology of any death-causing condition. The questions involved in this case are medically complex, and require specialized medical education to resolve. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. (Continued on the next page) As for the Veteran's metastatic lung cancer, with metastasis to numerous areas of her body, this was not manifested until many years after her separation from service and is not shown to be the result of any in-service event. As such, after review of the record, there is no basis to find that a service-connected disease or disability caused or contributed substantially or materially to cause death. Nor is it demonstrated that any other service-related disability accelerated death. For these reasons, the Board finds that the evidence of record persuasively weighs against the claim of service connection for the cause of the Veteran's death, and the claim must be denied. The benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.